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No Second Chance: Why juvenile offenders stay locked away

Lavon Butler keeps his photo ID from prison with him at all times. It stays in his wallet as a constant reminder of where he promised himself, his attorney and God that he would never return. “I have no earthly desire to go back,” he said.(Tessa Duvall/Florida Times-Union)

After more than 25 years behind bars of what was originally a life sentence, Jacksonville native Lavon Butler, 45, said he now takes pleasure in the little things in life. He’s now relocated to Sarasota, where he has a full-time job, a wife and two dogs. “All I needed was one more chance,” he said. Lavon Butler (Tessa Duvall/Florida Times-Union)

Lavon Butler

Attorney Diana Johnson (left) and her client Markeil Thomas turn to see Thomas’ father appear on his behalf. Markeil Thomas appeared in front of Judge John H. Skinner, at the Clay County Courthouse in Green Cove Springs, Florida, to be re-sentenced in a 2008 homicide case. Thomas was being re-sentenced due to new Supreme Court rulings on juvenile receiving mandatory life sentences. (Bruce Lipsky/Florida Times-Union)

Markeil Thomas

Markeil Thomas appears in front of Judge John H. Skinner on Sept. 26 to be resentenced in a 2008 homicide case. (Bruce Lipsky/Florida Times-Union)

Markeil Thomas trudged into Clay County Courtroom 12 in a faded jail jumper, shackled at the wrists, waist and ankles.

The 25-year-old was there to be sentenced — again — for his involvement in a September 2008 murder, a crime committed when he was 17.

This day marked the third time the same judge would decide his fate. He’d previously been given life, but the U.S. Supreme Court has deemed it unconstitutional to sentence a juvenile to mandatory life without parole, calling it cruel and unusual punishment. The nation’s highest court acknowledged that kids can change.

In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.”

Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

But in Courtroom 12, Circuit Judge John H. Skinner was unmoved.

Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”

So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years. This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.

Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.

It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.

But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.

Attorneys and advocates fear that Florida prosecutors will simply decide to seek life sentences all over again — as the prosecutor did in Thomas’ case — only this time with the new review period mandated by a 2014 statute aimed at remedying the state’s sentencing guidelines for juveniles.

“The prosecutors in some cases have ignored the science and the law, and are just seeking life,” said Roseanne Eckert of the Florida International University College of Law, who tracks these cases, “and I’m afraid that may be the case in Duval County.”

‘THE LAW IS MOVING SO FAST’

Over the last decade, a series of U.S. and Florida Supreme Court cases has dramatically changed how juveniles can be sentenced as adults. The U.S. Supreme Court has issued several landmark decisions since 2005 that define the ways juveniles are different in the eyes of the law.

“The Supreme Court has recognized several times now that kids are fundamentally different, and constitutionally different, from adults,” said Jody Kent Lavy, executive director of the Campaign for the Fair Sentencing of Youth. “They are less capable of thinking through the consequences of their actions. They don’t have adult levels of judgment. They are more susceptible to peer pressure, more susceptible to risk-taking.”

First, in 2005, the high court struck down the juvenile death penalty. Levick pointed out that this alone was unusual given that in 1989 it had upheld capital punishment for juveniles.

Then, in 2010, the case of Terrence Graham of Jacksonville ended life without parole sentences for juveniles convicted of non-homicide crimes, finding them to be a cruel and unusual punishment in violation of the Eighth Amendment.

Two years later, in deciding Miller v. Alabama, the court ended mandatory life without parole sentences for juveniles convicted of homicide, saying life can only be given to the “rare” and “uncommon” juvenile offender after considering his or her youthfulness. And in 2015 the Florida Supreme Court made that decision apply retroactively across the state.

The Florida Supreme Court has taken it further in subsequent cases, overturning sentences that did not consider that the defendant was a child, and that were so long that they were “virtually indistinguishable from a sentence of life without parole.”

“The law is moving so fast,” said Rob Mason, head of the juvenile division of the Jacksonville area’s public defender’s office. “People who have been practicing [law] for like 40 years are talking about, ‘We’ve never seen something like this.’”

In issuing these opinions, the courts have recognized that “adolescents use their brains in fundamentally different ways than adults,” said David Fassler, clinical professor of psychiatry at the University of Vermont’s College of Medicine. The part of brain that controls planning, reasoning and judgment develops last, around the mid-20s, he said.

Fassler said adolescents “are more likely to act on impulse or to be influenced by peers, and less likely to stop, think things through, or fully consider the consequences of their actions.”

‘AN ACKNOWLEDGEMENT WE’VE GONE TOO FAR’

Florida is an outlier in an outlier. The United States is the only nation that sentences children to life without parole. And among the states, Florida is one of five with the highest concentration of people eligible to potentially receive a new prison sentence based on the rapidly changing case law. Louisiana, Michigan, Pennsylvania and California round out the top five, according to the advocacy group the Campaign for the Fair Sentencing of Youth.

In Florida alone, there are more than 550 inmates sentenced to life for homicides committed when they were juveniles who are now entitled to resentencing, according to Eckert, the coordinator of the Florida Juvenile Resentencing and Review Project at FIU. Eckert works to make sure that no juvenile offender entitled to resentencing slips through the cracks. Of those 550 resentencing cases, 58 are in Duval County. In addition, there are about 1,000 cases statewide in which the defendants were sentenced to terms sufficiently lengthy to entitle them to resentencing, Eckert said.

Most reports put the total number of juvenile life-without-parole cases at around 2,500 nationwide, though it’s difficult to estimate how many juvenile offenders are entitled to resentencing due to state-by-state legislative reforms and judicial opinions.

In California, for example, sweeping legislation in 2013 gave as many as 5,000 youth offenders sentenced as adults a chance for parole, according to Human Rights Watch. More than 200 were serving life without parole.

Since 2011, the number of states that have banned life without parole for juveniles has more than tripled, according to the Campaign. Five states had banned the practice in 2011; it’s now up to 17. Four additional states — including Florida — have restricted it.

Courts in Iowa and Massachusetts have struck down juvenile life without parole under their state constitutions, and West Virginia’s legislature passed a law that gives juveniles a review after no more than 15 years. Nevada’s legislature unanimously ended juvenile life without parole in 2015.

In the states where reform is happening, Lavy said, the votes aren’t even close.

She said, “It’s an acknowledgement that we’ve gone too far and we can hold our young people accountable without sentencing them to die in prison.”

‘GODLESS, FATHERLESS MONSTERS’

Courts across the country have tried juveniles in adult courts for decades.

Levick, of the Juvenile Law Center, said two things contributed to more juveniles being put away for life: the ratcheting up of adult sanctions and the increasing number of juveniles sent to adult courts.

There was a spike in violent crime committed by juveniles in the 1980s and 1990s that led to widespread fears of “juvenile super-predators,” a theory now widely discredited and abandoned by even the academics who coined the term.

Lavy, from the Campaign for the Fair Sentencing of Youth, said the theory purported that these youth were “godless, fatherless monsters” who committed violent crimes. These juveniles were characterized as “ruthless sociopaths who lacked a moral conscience and were unconcerned about the consequences of their actions and undeterred by punishment,” according to a brief filed with the Supreme Court.

In reality, Lavy said, the theory was riddled with racism, but that didn’t stop it from appearing all over the news media and gaining traction with lawmakers. As a result, according to the brief, between 1992 and 1999 tough-on-crime policies made it possible to try children as adults in nearly every state.

But when the theory of the super-predator was proved to be a myth, the laws it spawned remained.

Rhonda Brownstein, legal director for the Southern Poverty Law Center, said Florida has always been among the toughest about sentencing kids in the adult system because prosecutors have so much discretion under state law to do so. It is one of only three states in which prosecutors can unilaterally charge children as adults.

To really reduce the number of juveniles who are incarcerated, Brownstein said, laws will have to change.

THE ROLE OF MITIGATION

The defense’s best chance for substantially different results in juvenile resentencing cases is to treat them like capital cases, attorneys said.

Mitigation — evidence used by defense attorneys to explain why their client committed a crime presented in an attempt to lessen the sentence — is crucial.

Eckert, who has a background in capital defense, said a mitigation specialist is a must. The specialists are trained in clinical interviewing techniques, and can uncover information about the defendant, his or her family and background.

“You can’t just call up the family and say, ‘Was your son sexually abused?’” Eckert said.

The use of these specialists has proved to be effective in capital cases, and now attorneys are trying to replicate that impact in cases in which juveniles could spend the rest of their lives behind bars, she said.

Bryan Gowdy, who represented Terrence Graham in his appeals and argued before the U.S. Supreme Court in Graham v. Florida, said finding mitigation can mean exposing unpleasant family secrets.

“The truth is — and this is where the defense attorney has to represent the child and not the family — most times, it is not because this child just became this evil person,” Gowdy said. “There are a lot of things that happened in that family that don’t get talked about, and they don’t want to talk about them.”

Since the Graham case, Gowdy said, more attorneys understand the need for mitigation. Jacksonville attorney Diana Johnson, who is handling three resentencing cases including Thomas’, said mitigation specialists, child-brain experts and investigators are crucial, as are obtaining all of a client’s records from schools, therapy, doctors, employment, the Department of Children and Families, the Department of Juvenile Justice and the Department of Corrections.

“It’s go, go, go, and then wait, wait, wait,” Johnson said.

Eckert said an effective case for resentencing has to be more comprehensive than just finding God or a teary mother begging for leniency. An effective social history work-up can take a year to compile, she said.

For those defendants who have been incarcerated for years, resentencing hearings offer the opportunity to show growth, change and maturation, which is difficult to do in prison.

“There is so much going on in prisons,” said Buddy Schulz, an attorney and juvenile justice advocate. “We’re told that gangs are so active in the prisons. These young kids are so influenced, that they get themselves disciplinary reports.

“When they come back for resentencing, the first thing the state does is go get their records from the Department of Corrections and they say, ‘Well, judge, he’s been anything but a model inmate.’”

‘WE DIDN’T GET THE MESSAGE’

Eckert said it is too early in the resentencing process to draw many conclusions from their outcomes. She estimates about 40 Miller cases — those in which the juvenile was given mandatory life without parole for homicide — have been resolved so far.

“In some jurisdictions, people jumped on it and the judges jumped on it and the cases were resolved much earlier,” she said. “Other [jurisdictions], they’re just kind of sitting there.”

Officials from the State Attorney’s Office declined to be interviewed for this story, instead issuing the following statement: “The State Attorney’s Office is currently reviewing juvenile cases that may be eligible for a resentencing. We believe there are less than 75 cases affected. All of these cases will be reviewed on a case-by-case basis and will be handled appropriately in court.”

Eckert and other advocates said they are hopeful that State Attorney-elect Melissa Nelson will be more willing to work out sentencing deals than her predecessor, Angela Corey.

Though some Florida prosecutors have agreed to pleas for sentences less than life, they are not generally reviewing cases on their own and then deciding not to seek life, Eckert said. These negotiated sentences typically follow the defense’s efforts to show mitigation, she said.

Brownstein, the SPLC attorney who is also working on a resentencing in Alabama, said a prosecutor’s job is not to succumb to the passions of the public.

“For prosecutors, their obligation is to seek justice and follow the law,” she said. “Their obligation is not to lock everybody up. Their obligation is to seek justice for the community, and justice has been defined by the Supreme Court.”

Levick, the Philadelphia attorney, pointed to Michigan as an example of how prosecutors are seeking life in a way that defies the Supreme Court’s order. Citing a recent report in The New York Times, she said prosecutors are again seeking life for more than half of Michigan’s 363 juveniles sentenced to life without parole.

“That’s clearly not what Miller meant,” Levick said. “‘Rare’ and ‘uncommon’ doesn’t mean a majority. It doesn’t even mean half. It doesn’t mean a third. So something is going wrong in Michigan.

“So, it’s early, but I would say the early signs are that we didn’t get the message.”

Gowdy said the Supreme Court can hand down a decision, but that alone doesn’t change attitudes.

“Look, Brown v. Board of Education came down in 1954, but it wasn’t until 1971 that the U.S. Supreme Court ordered busing to desegregate the schools,” he said. “It took 17 years for them to implement Brown. And I tell people, ‘It’s going to take a while because it’s not going to happen overnight.’”

But, he added, “I can tell you for the people serving these sentences, it’s not fast enough.”

‘ALL I NEEDED WAS ONE MORE CHANCE’

A 2014 Florida statute addressed sentencing for crimes punishable by life in prison. For first-degree murder it established a 40-year minimum if the offender “actually killed, intended to kill or attempted to kill,” though the judge could still impose up to life. The law also created opportunities for review in front of a judge at 25 years for first-degree murder. For second-degree and felony murder, there were no minimum mandatories, though life sentences could still be handed down with reviews at 25 and 15 years respectively.

Levick said Florida’s review period is about middle of the pack nationally, but “they don’t get points” for that. Levick believes 10- to 15-year reviews make much more sense.

“We know that this population, even when they commit these heinous crimes — even as teenagers — the capacity for change is great,” she said. “The likelihood that they simply desist from criminal conduct over the next 10 years or so in their mid-20s is great. So it’s very rational, it makes an enormous amount of sense, to look at these kids, examine how they’re doing and to consider bringing them back into the communities certainly after 10 or 15 years.”

Perhaps few understand the value of second chances better than Lavon Butler.

A native of Jacksonville, Butler was 16 in 1988 when he shot a police officer. The officer survived with no lasting injuries, and Butler was sent away to spend the rest of his life in prison.

Butler said no child should be subjected to prison.

“Because you take a juvenile and you put us around hardened criminals, rapists and child molesters, of course a lot of us [are] going to become victims. And a lot of them did become victims,” Butler said. “That’s sink or swim. Sinking is you falling prey to someone. Swimming is fighting on every corner. I had to swim.”

When in 2010 the Supreme Court ruled that juveniles can’t be sentenced to life for crimes other than homicide, Butler became eligible for resentencing. He’d become a trusted prison worker, running the canteen, and he’d earned a number of program certificates. The judge who resentenced Butler was moved by his efforts to better himself and gave him 25 years, which he’d already served.

In the more than two years since his release, Butler, 45, has moved to Sarasota to be near a pastor who helped him get back on his feet. He is working full time and is married, with two dogs and a motorcycle.

Butler said he is proof people can change. But he looks back on a system he describes as “grossly unfair” and not designed for kids, and he wants it to change.

“A lot of kids just do things and they don’t understand what they’re doing,” Butler said. “They don’t know the magnitude of their actions, the ramifications they’ll have.”

LEGAL QUESTIONS LEFT TO ANSWER

Florida’s statute to bring its sentencing measures into compliance is now being challenged — and with some success. The legislative fix strips judges of the discretion the Supreme Court requires in sentencing these cases, attorneys say.

And a judge in the 13th Judicial Circuit in Tampa seemed to agree. In September, Circuit Judge William Fuente ruled the law to be unconstitutional.

In striking down mandatory life without parole for juveniles, the Supreme Court said a defendant’s age and youthful immaturity, as well as failure to appreciate risks and consequences, must be considered.

Using that logic, Fuente found the state law does not allow judges the discretion Miller requires.

Fuente’s ruling doesn’t establish any legal precedent until ultimately the Florida Supreme Court weighs in, but it could persuade other trial court judges as similar motions are being filed across the state.

Now, the courts are being asked to further opine on an array of juvenile sentencing cases.

“Those certainly include, ‘What are effectively virtual life sentences? How long is too long? How many years equal a life without parole sentence?’” Levick said of the issues court will grapple with. “That is a question that the Supreme Court itself may have to decide one day. Does it make a difference when these sentences are imposed consecutively? When someone has been convicted for three homicide crimes, is it OK to give them three consecutive 30-year sentences?”

The state Supreme Court unanimously tossed out the sentence of a local young man, Shimeek Gridine, who was sentenced to 70 years for several non-homicide crimes committed in one incident when he was 14. A 70-year sentence does not provide a “meaningful opportunity” for release, the opinion said.

Could the Supreme Court throw out juvenile life sentences all together? It’s possible.

The SPLC’s Brownstein said states with “obvious violations” of the court’s intent, like Florida, could be what causes the high court to finally say enough is enough.

“The U.S. Supreme Court is going to look at these cases and say, ‘We said that only the ‘rare’ juvenile offender [could receive life without parole]. We said it repeatedly. And what do we have? We have 50 percent of the cases in Florida [where] people are being sentenced to life without parole.

“That’s not rare,” she said.

Brownstein said she thinks eventually the U.S. Supreme Court will have to issue a categorical ban on juvenile life without parole because the state courts have shown they can’t be trusted to follow decisions in this regard.

THE HUMAN, MORAL AND FINANCIAL COST

It will take time to resolve these legal questions; and in the legal profession, time is money.

Eckert said a vast majority of these cases are being handled by public defender’s offices, and most have attorneys skilled in capital defense or juvenile law and mitigation specialists on staff. But the cases are demanding; and there are a lot of them.

Public defender’s offices are requesting about $1.9 million more from the state to cover the costs of reworking these cases, said Bob Dillinger, president of the Florida Public Defender Association, which represents 19 of the state’s 20 elected public defenders.

Dillinger, the public defender for Pinellas and Pasco counties, said most circuits asked for the money to hire one attorney and one mitigation specialist, at about $100,000 per circuit.

The experts for these cases are also costly for the state. Court-appointed experts for resentencing hearings receive a flat fee of $500, according to court administration.

Eckert said if the courts recognize that juveniles can be rehabilitated, then they need the opportunity to participate in programs and education while incarcerated. Inmates with lengthy sentences are often denied access to such opportunities.

“So how do they show rehabilitation when they were denied the opportunity to be in programs?” Eckert said. “And that needs to change, and they need funding for that change.”

‘NO END GAME IN SIGHT’

Markeil Thomas had hopes for his life outside of prison.

He’d planned to enroll in community college to study business management, or web development, or maybe welding. The Thomas family wants to open a restaurant, and Markeil would help.

And he wanted therapy, to help “deal with the pressures of society.”

With another chance, Thomas said, he would show that people can come back from their mistakes.

But for now, those plans are on hold, maybe until 2048.

It is both “heartening and heart-wrenching” to see the developments around juvenile life without parole, Levick said.

“Heartening to hear the Supreme Court say kids are developmentally different than adults — even at their worst, even those kids who are convicted of murder — they still must be treated differently. They can’t be treated in lockstep with adults, can’t be sentenced the some way,” she said. “But the despair part of it comes from recognizing how challenging it is to implement the decision on the ground.”

Prosecutors and judges, she said, are simply unwilling to let go of the past. It will take a cultural and generational change to move forward, she said.

“We’re a very retributive country, and we think of punishment as serving that purpose,” Levick said. “When your eye is on retribution or revenge, there’s really no end game in sight.”